This November 7th Wisconsinites have several big decisions to make including the hotly debated constitutional amendment banning gay marriage.

Wisconsin State Statutes already define marriage as “a legal relationship between 2 equal persons, a husband and wife, who owe to each other mutual responsibility and support.” 

The proposed amendment states "Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state."

Although the amendment appears to be nothing more than an exclamation point added to the existing language in the current state statute it actually goes one step farther.  Under the current law it would theoretically be possible for homosexual couples to seek the creation of a new legally binding marriage-type agreement such as a civil union.  The proposed amendment slams the door on such agreements by stating that “A legal status…substantially similar to that of marriage…shall not be valid…”

The argument from many homosexuals and gay marriage advocates is that they (the homosexual community) should be given the same rights as heterosexual couples.  Many use the catch phrase ‘equal protection’, referring to the equal rights and equal protection language in the federal constitution.

Let’s take a look at some of those rights, item by item.

First is healthcare decision making.  By law, a spouse is the legal ‘next of kin’ and automatically has the responsibility to enter into necessary medical contracts (consent for treatment) and to make necessary medical decisions when the patient cannot (such as whether or not to continue treatment or whether or not to donate organs and tissues).   This also includes being allowed to enter “family only” ERs or hospital rooms.

Opponents to the “anti gay marriage amendment” say that only legally married couples have these rights.  However, as any attorney will tell you, anyone can be named as a Medical Power of Attorney and he or she will have the same rights as a spouse when it comes to medical decisions and yes, admittance to ‘family only’ ERs or hospital rooms.  This is often done for the elderly and disabled – a quasi-professional medical POA is named as the patient’s decision maker when the family can’t or won’t take on the duties of a POA. 

Second is life insurance benefits and estate benefits.  Opponents of the amendment say that when one spouse dies the other automatically becomes the beneficiary of any life insurance or estate (which is true).  They say that homosexual partners have no such automatic right (which is also true).  What they don’t say is that any person can name any other person as a beneficiary for life insurance policies (so long as an “insurable interest” exists) and any person can name any other person and the beneficiary of his or her estate within a nifty legal document called a Last Will and Testament.
Third is custody of children.  Gay marriage supporters rightfully point out that when one parent dies the other is automatically the guardian of the couple’s children and under current law a homosexual partner does not automatically become a guardian.  What isn’t being mentioned is that any person can name any other person as a successor guardian within a will. The same legal function that allows parents to specify relatives who will become their children’s legal guardians in the event that both parents are killed allows homosexual couples to spell out their succession of guardianship.

Fourth is health insurance.  Proponents of gay marriage complain that homosexual couples do not receive the same health insurance advantages of heterosexual couples.  Although this is true to some extent, it is not a function of law but rather a matter of business practices of health insurance companies.  Virtually every insurance company will allow (for example) a man to add his wife on his health insurance policy – the woman becomes covered by the man’s health insurance.  Many insurance companies do not “recognize” homosexual couples and will not allow a homosexual man to add his male partner as another insured.  Contrary to what gay marriage advocates state, an amendment banning gay marriage has little to no effect on whom health insurance companies allow to be ‘other covered individuals’.  It is up to individual insurance companies to decide whether or not to allow homosexual partners.  Many insurance companies already allow homosexual partners to share policies – it is simply a matter of shopping around for the right company and the right policy.

The fifth and final issue is community property.  Wisconsin is a community property state, meaning that the moment couples sign their marriage license their current and future individual property becomes combined and each becomes an equal owner.  For example, if he has a boat and she has a house, both become joint owners of the boat and house together.  If he makes $50,000 per year salary and she makes $60,000 per year, the money is pooled and each “owns” $55,000.  This becomes very important (and very difficult) during divorces – it is the property and income that often becomes the most hotly contested issue in divorce proceedings.  Under current Wisconsin law, homosexual couples cannot place any claims on each others property or income.

Out of the five major issues that proponents and opponents of gay marriage routinely debate (healthcare decision-making, life insurance and estate, custody of children, health insurance, and community property) only one – community property – can not be obtained by homosexual couples.  The other four can be obtained through various legal methods.  It is interesting that the only issue that can’t be resolved through other means is the one issue that any divorced couple will tell you was the most problematic and the one issue they wish was not a part of the marriage contract – community property.

Homosexual couples already have the ability to enjoy almost all of the benefits that heterosexual couples can obtain through marriage.  If their professed agenda of ‘equal rights’ was their only agenda they could stop the crusade and rest easy knowing that homosexual couples can enjoy all of the positive legal rights of marriage whether or not gay marriage is legalized and whether or not a constitutional amendment is passed banning gay marriage.  None of the legal, contractual functions of a marriage have to be obtained from within a marriage contract except for community property – and I’d be willing to bet that a good lawyer could draw up some sort of legal agreement to address that issue as well.  All of the legal and contractual functions of a marriage can be obtained through other means independent of a marriage contract. 

Here’s the bottom line – in my opinion, this isn’t about equal rights and it isn’t about allowing homosexual couples to obtain the legal benefits of marriage.  If that’s all it was, as I said earlier, it can already be done.

What it is about is attempting to force Americans to sanction homosexual marriages and, in the bigger picture, homosexuality as a whole.  We as Americans have already made great strides in tolerating what many see as immoral for both personal and religious reasons.  We as a country are making progress in accepting both homosexuals and their lifestyle.  We aren’t ready yet, though, to give overt approval to the homosexual lifestyle by granting them the ability to share in what was originally a sacred religious joining of two people.  Marriage is deeply rooted in religion and only fairly recently (in historical terms) was turned into a strictly legal contract.  To allow homosexuals to obtain the title ‘married’ would be, for many, the same as turning our backs on our thousands of years of religion.  America just isn’t ready for that yet.

My advice is simple: be happy with what you have.  If all homosexuals want is equal rights, they already have them.  Don’t continue to push the issue and try to force Americans to accept what they feel is an offensive and immoral lifestyle.

This November 7th I am going to vote AGAINST the constitutional amendment banning gay marriage.  Yes, you read that right, I’m voting AGAINST it.  Want to know why?  You’ll just have to come back next Monday for next week’s column!